Judge: NY paddlers can use stream on private land

MARY ESCHAssociated Press Published: February 26, 2013 6:32 PM

ALBANY, N.Y. (AP) -- A canoeist won a court case Tuesday that had challenged the right of paddlers to cross private land via a small stream connecting two popular Adirondack wilderness lakes.

The landowners, Brandreth Park Association and Friends of Thayer Lake, had sued Phil Brown of Saranac Lake after he wrote an article in the Adirondack Explorer newspaper in 2009 about canoeing from Lake Lila to Little Tupper Lake in the state-owned Whitney Wilderness Area.

Brown used the Mud Pond waterway across Brandreth land despite the landowner's no-trespassing sign and cable across the stream. His article included photos of him and another paddler on the stream.

The state Department of Environmental Conservation sided with Brown in the case, saying the stream is navigable and thus paddlers have the legal right to use it. A state Supreme Court judge agreed. He directed the landowner to stop putting cables or warning signs across the stream.

The stream is in a wilderness canoe-camping area 115 miles northwest of Albany. In its legal brief, the DEC noted that the Adirondack Park is a nationally recognized canoe and kayak destination and the wilderness area is one of the most popular paddling and backcountry camping areas, attracting about 2,000 users annually.

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The landowners had argued that a waterway must have a history of commercial use to be subject to common law, which says the public has the right to use it for navigation. They said a milelong portage around the private inholding takes less time than paddling across the tract via the interconnected Lilypad and Mud Ponds and Shingle Shanty Brook.

John Caffrey, Brown's attorney, said a landmark 1998 decision by the state's highest court established that recreational use can be considered in deciding whether a waterway is open to the public under common law.

In the 1998 case, the Sierra Club successfully challenged a private landowner on the Moose River in Hamilton County to establish the right of paddlers to cross private tracts.

Tuesday's ruling said paddlers also had the right to make a 500-foot portage on the private land along the Mud Pond waterway to get around a stretch of rapids. It said the landowners were free to continue to post and prosecute trespassers that fish or enter other parts of their property.

"While this case was about one stream, the wider implication is we had a property owner trying to turn back the law to the view of the public right of navigation that existed before the Moose River decision," Caffrey said. "It's good that the proper interpretation of the law prevailed."